Answer To Crosscomplaint of Marriot Hotell Services Inc Atty KlausResponseCal. Super. - 6th Dist.December 17, 2019Oo O e ~~ S N nn B W = N N N N N N N N R e m m m e m R e e d p m me k pe d fe d e s co ~~ S N hh BR W Y = O W e N N nt BR W N = O 19CV360445 Santa Clara - Civil Ka COD A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel: 650.592.5400 Fax: 650.592.5027 n C. Klaus, Esq. - SBN 205923 INGTON, HICKS & DANFORTH Electronically Filed by Superior Court of CA, County of Santa Clara, on 6/18/2020 9:17 AM Reviewed By: L. Quach-Marce Case #19CV360445 Envelope: 4471790 ATTORNEYS FOR Defendant/Cross-Defendant City of Santa Clara IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA TERESA RICCARDI and CHRISTOPHER RICCARDI, Plaintiffs, VS. CITY OF SANTA CLARA; MARRIOTT INTERNATIONAL, INC.; MARRIOTT INTERNATIONAL ADMINISTRATIVE SERVICES, INC.; MARRIOTT INTERNATIONAL CONSTRUCTION SERVICES, INC.; MARRIOTT INTERNATIONAL FRANCHISING, LLC; MARRIOTT HOTEL SERVICES, INC; MARRIOTT INTERNATIONAL CAPITAL CORPORATION; MARRIOTT INTERNATIONAL DESIGN & CONSTRUCTION SERVICES, INC; DORCICH FARMS, LLC; DORCICH FARMS, BUSINESS ORGANIZATION FORM UNKNOWN; and DOES 1 through 100, inclusive, Defendants. Case No. 19CV360445 CITY OF SANTA CLARA’S ANSWER TO CROSS-COMPLAINT OF MARRIOTT HOTEL SERVICES, INC. Answer to Cross-Complaint Case No: 19CV360445 ana O e 3 A N wn A W N J NN \] [\ ] n o N o N o ro N o pt Jt - - - p t jd Jt Y- J co mm er MARRIOTT HOTEL SERVICES, INC. Cross-Complainant, VS. CITY OF SANTA CLARA, and MOES 1 through 100, inclusive Cross-Defendant. COMES NOW Cross-defendant City of Santa Clara and in response to the unvetified Cross-Complaint of cross-complainant on file hetein, herewith denies each and every, all and singular, the allegations therein contained, and in this connection, cross-defendant denies that cross-complainant has been injured or damaged in any of the sums mentioned in the Cross- Complaint, or in any sum whatsoever or at all, as a result of any act or omission of this answering cross-defendant. AS A FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- - COMPLAINT ON FILE HEREIN, this answering cross-defendant alleges that said Cross- Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action against this cross-defendant. | AS A SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, this answering cross-defendant alleges that said Cross- Complaint, and each cause of action thereof, fails to state facts sufficient to constitute a cause of action for punitive or exemplary damages. AS A THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, cross-complainant was itself careless and negligent in and about the matters alleged in the Cross-Complaint; that said carelessness and negligence on said cross-complainant’s own part proximately contributed to the happening of the incident and to the injuries, loss gd dmg complained of, if any there were; that should cross-complainant recover damages, cross-defendant is entitled to have the amount thereof abated, reduced or Answer to Cross-Complaint Case No: 19CV360445 f d = o O 1 O N i se W N Je t < p d p k f k ed e d md ee d ed ed NO L N O N n t B W N e BN N Y N N N N N N 0 NN S N Wn B W N = OO eliminated to the extent that cross-complainant’s negligence caused or contributed to its injuries, if any. AS A FOURTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN; cross-complainant acted with full knowledge of all the facts and circumstances surrounding its injury and assumed the risk of the matters causing its injury, and that said matters of which cross-complainant assumes the risk proximately contributed to the happening of the incident at bar and proximately caused its injury, if any. AS A FIFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, named and/or unnamed third parties were careless and negligent in and about the matters alleged in the Cross-Complaint; that said carelessness and negligence of said named and/or unnamed third patties proximately contributed to the happening of the incident and to the injuries, loss and damage complained of by cross- complainant, if any there were; that should cross-complainant recover damages, this answering cross-defendant is entitled to have the amount thereof abated, reduced or eliminated to the extent that said named and/or unnamed third parties’ negligence caused or contributed to cross-complainant’s injuries, if any. AS A SIXTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, cross-complainant fails subsequent to the occurrence described in the Cross-Complaint properly to mitigate its damages and thereby is precluded from recovering those damages which could have reasonably been avoided by the exercise of due care on the part of cross-complainant. AS A SEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, the Cross-Complaint, and each cause of action theteof, is batted by the applicable period of limitations including, but not limited to, limitations codified in California Code of Civil Procedure § 335.1 and California Code of Civil Procedure § 338. AS AN EIGHTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, cross-defendant alleges that in the management of its propetty, it acted reasonably. Prior to the happening of this alleged accident, cross-defendant 3 Answer to Cross-Complaint Case No: 19CV360445 O ce aN wh + w o N = N o No N o B o N o N o [3 S] N o \® ] fi - - at p m p- -_ - pt ft o e ~~ hn EN Ww No - < O o o | AN wh + a Ww N d -_- oo did not have actual or constructive knowledge of the alleged dangerous condition and discovery of such condition could not have been made in the exercise of reasonable care. AS A NINTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, cross-defendant alleges that it did not have actual or constructive notice of the condition alleged by cross-complainant and, as such, had no duty to cross-complainant, the lack of such duty being a bar to cross-complainant’s recovery. AS A TENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS- COMPLAINT ON FILE HEREIN, cross-defendant alleges that any and all acts or omissions of cross-defendant, its agents or employees, which allegedly caused the injuries or damages claimed in the Cross-Complaint, were the result of the exercise of discretion vested in them pursuant to Government Code Sections 815.2 and 820.2; cross-defendant, therefore, is not liable for the alleged injuries and damages complained of. AS AN ELEVENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE | CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that the matters set forth in plaintiffs’ complaint were the result of the acts or omissions of employees of the cross- complainant, and cross-defendant, therefore, is not liable for the alleged injuries and damages complained of. | AS A TWELFTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS: COMPLAINT ON FILE HEREIN, cross-defendant alleges that any and all acts or omissions of cross-defendant, its agents or employees, relative to the condition of the property at the time and place alleged in the Complaint, were reasonable. Pursuant to Government Code Sections 835.4(b), cross-defendant, therefore, is not liable for any of the alleged injuties or damages complained of. AS ATHIRTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that any and all acts ot omissions of cross-defendant, its agents or employees, which allegedly created a dangerous condition of the property at the time and place of the incident alleged in the Cross-Complaint, were in accordance with a plan and design for the construction of an improvement of public 4 Answer to Cross-Complaint Case No: 19CV360445 o d = E E E E E Y " a N N N N N N N N N Pt pd pm pd pee k pe em pe d fe e oo ~1 O N wn + [F e B o bt oo Oo 0 ~3 2% wh + 2 ro [a d << property, which plan and design had been approved in advance of construction and improvement by the proper legislative body and public employees exercising discretionary authority to give such approval; this plan and design were - in conformity with standards previously so approved; and these approvals were reasonable. Pursuant to Government Code Section 830.6, defendant, therefore, is not liable for any of the alleged injuries or damages complained of. AS A FOURTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that the injuries and damages alleged by Cross-complainant were caused by acts or omissions of a third party or parties, and not by acts or omissions of cross-defendant, its agents or employees. Pursuant to Government Code Section 820.8, cross-defendant, therefore, is not liable for any of the alleged injuries or damages complained of. AS A FIFTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges, without admitting liability or that Cross-Complainant has suffered or will suffer any loss, damage or injury, in the alternative, that any loss, damage or injury which plaintiffs have suffered or will suffer, as alleged in the Cross-Complaint or otherwise, is the direct and proximate result of the unforeseen /unforeseeable negligent, grossly negligent or criminal acts or omissions of an intervening third party or patties, or other acts or omissions for which such party or parties may be strictly liable, and that such acts or omissions completely bar any recovery against cross- defendant. Pursuant to California Government Code Section 820.8, cross-defendant is, therefore, not liable for any such alleged injuries or damages complained of. AS A SIXTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE. CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that the condition of propetty alleged in the Cross-Complaint did not constitute a substantial risk of injuries, but rather a minor, trivial or insignificant risk which did not create a dangerous condition of property. Pursuant to Government Code Section 830.2, cross-defendant, therefore, is not liable for any of the alleged injuties or damages complained of. 5 Answer to Cross-Complaint Case No: 19CV360445 Oo 0 ~~ S N W B W N ee BN R N N N N N N N Y m e e m E e pe e d e e l fe ed fe © J AA WL BR W N OR , OS WV N N N BR W N = O AS A SEVENTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that the Cross-Complaint fails to set forth any statutory basis for the causes of actions purportedly contained therein. The condition of the propetty as alleged in the Cross-Complaint did not constitute a substantial risk of injuties, but rather a minor, trivial, or insignificant risk which did not create a dangerous condition of the property and, therefore, those causes of action are barred. In particulat, Cross- complainant failed to identify and allege a dangerous condition as required by Government Code Sections 830.2, 835, 835.2 et. seq. AS AN EIGHTEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE COMPLAINT ON FILE HEREIN, cross-defendant alleges that it cannot be held vicariously liable for any other parties’ actions, pursuant to the Court’s holding in John R. v. Oakland Unified School District. AS A NINETEENTH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that to the extent the allegations of the Cross-Complaint attempt to enlarge upon the facts and/or contentions set forth in a claim, if any, filed by the plaintiffs, the Cross-Complaint fails to state a cause of action, and violates the provisions of California Government Code, Chapter 1 (commencing with Section 900), and Chapter 2 (commencing with Section 910). Cross-defendant reserves its right to strike any such allegations and objects to any evidence directed to prove them. AS A TWENTIETH, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, arose defendant alleges cross-complainat failed to comply with the requirements of the California Tort Claims Act. AS A TWENTY-FIRST, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that cross-complainant had the last clear chance to avoid the alleged defect complained of its cross-complaint. AS A TWENTY-SECOND, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that cross- complainant unreasonably delayed providing notice to cross-defendant of its claim and that 6 Answer to Cross-Complaint Case No: 19CV360445 OO & 3 ON wn bh W N NN N o N o Ne } N N No NO nN p- - - f - p- - f - - ft oh 00 ~~ ON Wn RA W N ee © OO 0 SN Wn R W NN R D such delay substantially prejudiced cross-defendant and, therefore, cross-complainant’s Cross- Complaint is barred by the doctrine of laches. AS A TWENTY-THIRD, SEPARATE AND AFFIRMATIVE DEFENSE TO THE CROSS-COMPLAINT ON FILE HEREIN, cross-defendant alleges that it has not yet fully investigated the facts of this case and so cannot fully anticipate all affirmative defenses which may be applicable and, accordingly, cross-defendant reserves the right to assert any and all such additional affirmative defenses as ate applicable in this action. WHEREFORE, cross-defendant prays that cross-complainant take nothing against ctoss-defendant by its said cross-complaint; that cross-defendant has judgment for its costs of suit hetein incurred, together with such other and further relief as may be just and proper. Dated: June 12, 2020 CODDINGTON, HICKS & DANFORTH By: Katteyn C. Kamo Kathtyh C. Klaus Attorneys for Defendant/Cross-Defendant City of Santa Clara Answer to Cross-Complaint Case No: 19CV360445 oO ww N y hh B w N e N Y O N N R N N N N e m em ee mk pe l e d p d ee d m d fe d C O N N N Wn Bs W N em O N 0 O Y ls W N e o m r a PROOF OF SERVICE California Code of Civil Procedure sections 1011, 1013, 1013a, 2015.5 + California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(b) I, the undersigned, declate that I am employed in the County of San Mateo, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. My electronic mail address is joseguera@chdlawyers.com | I am readily familiar with my employet’s business practice for collection aml processing of cotrespondence and documents for mailing with the United States Postal Service, mailing via overnight delivety, transmission by facsimile machine, and delivery by hand. On June 18, 2020, I served a copy of each of the documents listed below by placing them for processing as indicated herein. CITY OF SANTA CLARA’S ANSWER TO CROSS-COMPLAINT OF MARRIOTT HOTEL SERVICES, INC. X United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal och at Redwood City, California on this same date in the ordinary course of usiness. Overnight Delivery: The cpmmEgponence or documents were placed in sealed, labeled packaging for overnight delivery, with Federal Express, with all charges to be paid by my employer on the above date for collection at my place of business to be deposited in a facility regularly maintained by the overni he delivery cartier, or delivered to a courier or driver authorized by the overnight delivery carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the patty or attorney indicated herein, ot if upon attorney, by leaving the labeled envelopes with a receptionist ot other person having charge of the attorney’s office. Facsimile Transmission: The correspondence or documents wete placed for transmission from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number rovided by said patty or attorney, on this same date in the ordinary course of business. The transmission was tepotted as complete and without error, and a record of the transmission was propetly issued by the transmitting facsimile machine. : Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. f - O O a1 Y n Ae W N N O N N N N N N N N D mm em e d ee p m em t ee d e d p e d pe GC N I N hh Bs W N = O Y N N i BR W N = © State. The recipient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed a document with the court; and/or the Court has mandated that the parties serve documents through its Court approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the court or any patty to the action ot proceeding in which it is filed, in the manner provided in California Rule of Court Rule 2.257(a). Federal. The recipient of this electronic service has consented to this method of service in writing, a copy of which is on file and available for inspection in my employet’s office. I have received no indication the electronic transmission did not reach the recipient. PERSONS OR PARTIES SERVED: David P. Mastagni, Esq. Mastagni Holstedt, AP 1912 I Street Sacramento, CA 95811 Telephone: (916) 446-4692 Facsimile: 916) 447-4614 E-mail: wlambert(@mastagni.com Lisa D. Collinson, Esq. Collinson, Daehnke, Inlow & Greco 21515 Hawthorne Boulevard, Suite 800 Torrance, CA 90503 Telephone: (424) 212-7777 Facsimile: 424) 212-7757 E-mail: lisa.collinson@cdiglaw.com I certify (or declare) under penalty of petjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on June 18, 2020. = / [ Joona | Court: Superior Court of California, Santa Clara County Action No: 19CTV360445 Case Name: Riccardi v. City of Santa Clara